Central Administrative Tribunal - Delhi
Anil Kumar Verma vs Union Of India on 31 August, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3715/2011 Order reserved on 17. 04. 2012 Order pronounced on 31.08. 2012 Honble Dr. Dharam Paul Sharma, Member (J) Honble Mr. Sudhir Kumar, Member (A) Anil Kumar Verma S/o Shri Om Parkash Verma R/o RZ/34 Gopal Nagar Extension Main Dhasa Road, near Nanak Pio, Khowal Dharam Kanta Wali Gali, Najafgarh, New Delhi-110043. -Applicant (By Advocate: Dr. D.C. Vohra) Versus 1. Union of India Through The Secretary, Ministry of Home Affairs, North Block, New Delhi-110011. 2. Deptt. of Personnel & Training Through its Secretary North Block, New Delhi-110011. 3. Police Commissioner of Delhi Police Headquarters Indraprastha Estate, New Delhi-110002. -Respondents (By Advocate: Shri Vijay Pandita) O R D E R Mr. Sudhir Kumar, Member (A):
The applicant of this OA is aggrieved with his pay fixation w.e.f. 01.01.2006 under the Central Civil Services (Revised Pay) Rules, 2008 (CCS (RP) Rules, in short), against which pay fixation, he had submitted his representation on 28.03.2011 for re-fixation of his pay at par with his junior promotee, which representation has been disposed of by the office of the Respondent No.3 through the impugned order dated 13.05.2011. The Respondent No.3 had, in deciding his case, followed the instructions of Respondents No.1 & 2 communicated through Annexure A-1/A dated 08.12.2009, which also the applicant has impugned in this OA. In the result, he has prayed for the following reliefs:-
1) A declaration by their Lordships of this Honble Tribunal that the Annexure/A1-A-letter dated 8/12/2009 sent by the Respondent/3MHA (sic) to the Government of the NCT of Delhi (which is neither the Cadre Controlling Authority of the Delhi Police nor a Channel of Communication between the Respondent/3-MHA (sic) and the Respondent/1-Delhi Police (sic) in the matters relating to pay fixation) has no application in the case of the applicant.
2) A declaration by their Lordships of this Honble Tribunal quashing the Annexure/A1 Order dated 13.05.2011 and the earlier Annexure/A2-Order dated 12.11.2009, being in violation of the clauses (i) and (ii) of the Rule 7(1)(A) of the CCS (RP) Rules, 2008, read with Notes 9 and 10 there-under mandating the fixation of pay of the applicant at Rs.7510 + Grade Pay Rs. 2400=Rs.9910 (as on 1/1/2006 in the Pay Band of Rs.5200-20200, with subsequent grant of annual increments @ 3% of his entitled basic pay of Rs. 9910 since 1/7/2006 till date in view of the discriminatory treatment meted out to the applicant, being tantamount to a denial of his fundamental rights, including equal pay for equal work, in gross violation of Articles 14,16 and 21 of the Constitution.
3) An order/direction to the Respondent-1/MHA and Respondent/3-Delhi Police to issue a fresh order regarding the applicants pay fixation in the Pay Band of Rs.5200-20200 at the entry level of Rs.7510 + Grade Pay Rs. 2400 = Revised Pay of Rs.9910 (as on 1/1/2006, as done in other cases of Head Constables of Delhi Police, as per the mandate of the CCS (RP) Rules 2008 with further grant of annual increments @ 3% of his basic pay since 1/7/2006 till date in terms of the clauses (i) and (ii) of the Rule 7 (1) (A) of the said Rules, read with Notes 9 and 10 there under as well as the FR 22 (pay fixation rule) and FR 30 (the next below rule) and after preparation of a due and drawn statement make payment of the arrears of pay and allowances due to the applicant with interest @ 12% per annum, pendent kite and will the date of actual payment.
4) The costs of these proceedings may graciously be awarded in favour of the applicant and against the Respondents who have afflicted this avoidable litigation, mental agony and the expenses on the applicant.
5) Any other or further relief as may be deemed fit and proper in the facts and circumstances of the case and in the interest of justice may also be granted in favour of the applicant and against the Respondents.
2. The applicant is a direct recruit Head Constable (Assistant Wireless Officer, AWO in short) appointed on 09.11.1998, when, after successfully competing in a written test, he was deployed as Head Constable (AWO) in the Communications Unit. After the 5th Pay Commission, his pay scale was in S-6 Pay Grade Rs.3200-85-4900, which the applicant has claimed was subsequently upgraded to S-7 pay scale of the 5th Pay Commission Rs.4000-100-6000 w.e.f. 29.08.2008, when the Govt. of India Ministry of Finance had issued the Notification regarding acceptance of the recommendations of the 6th Pay Commission, and the implementation of the Revised Pay Scales, which were adopted from the same date of 01.01.2006 in Delhi Police also, through instructions dated 02.09.2008. The applicant has claimed that he became entitled to the fixation of his pay in the new dispensation in the Pay Band of Rs.5500-13500.
3. He has submitted that in the case of equivalent posts in the Executive cadre of Head Constables in Delhi Police, who were also earlier entitled to the erstwhile S-6 Pay Scale Rs.3200-85-4900, their pay had been upgraded to the erstwhile S-7 Pay Scale 4000-100-6000, and both these earlier pay scales S-6 and S-7 are now placed in Pay Band-I Rs.5500-13500/-, though with different Grade Pay, that of Rs.2,000/- in respect of those who were in the S-6 pay scale as on 01.01.2006, and the Grade Pay of Rs.2400/- in respect of those who were in S-7 pay scale. He has submitted that the basic pay of the Head Constables (Executive) of Delhi Police was resultantly fixed in the Pay Band-I with entry level pay of Rs.7510 + Grade Pay of Rs.2400/-, with the total of Rs.9910/-, as on 01.01.2006, with annual increments enhancing their new basic pay on each subsequent Ist July of 2006,2007 and onwards. The applicant has, therefore, submitted that in violation of these Rules, even though his pay had to be fixed with the multiplication factor of 1.86 applied to Rs.4,000/-, at Rs.7440/-, as on 01.01.2006, which would automatically stand revised to the minimum pay of Rs.7510/- payable to him at the entry level pay scale of Head Constables (Executive), his pay has been arbitrarily fixed at Rs.7060/-, by applying the multiplication factor of 1.86 to his earlier basic pay of Rs. 3795/-, which he was drawing when he was in his erstwhile pay scale of S-6 Rs.3200-85-4900/-. He has assailed that this has been done even though there is no level of Rs.7060/- in the Pay Band of Rs.5200-20200/- in the Pay Band-I with the Grade Pay of Rs.2400/-, as per the entry level itself being prescribed at Rs.7510/-, vide Schedule-II appended to the CCS (RP) Rules, 2008.
4. The applicant first made a representation on 04.11.2008 in this regard, but was denied this pay scale through order dated 12.11.2009, while similarly placed Head Constables (Executive) deployed in South District Delhi Police had been placed at the entry level pay scale of Rs.7510 + Grade Pay of Rs.2400/- as on 01.01.2006. Not only this, the applicant has submitted that yet another pay fixation order 03.012.2009 was issued in respect of five Head Constables deployed in the Security Wing of Delhi Police, granting them also the Head Constable entry level pay scale of Rs.7510/- + Grade Pay of Rs.2400/- w.e.f. 01.01.2006. The applicant sought details regarding his pay fixation under the RTI Act on 16.12.2009, from Respondent No.1, Ministry of Home Affairs, but instead of replying to the same, it was merely transferred to the Office of Deputy Commissioner of Police in the office of Respondent No.3, who again forwarded it to the Deputy Commissioner of Police in the Communication Unit through letter dated 04.01.2010, from where finally the reply dated 22.01.2010 (Annexure A-20) was issued.
5. In reply to his two pointed queries in his application dated 16.12.2009, as to what are the reasons for which the Head Constables, who were enlisted in 1998 are getting less pay than their juniors who are appointed after the 6th Pay Commissions recommendations, and as to what is the basic pay and Grade Pay of a Head Constable, who is enlisted in Delhi Police after 01.01.2006, the following reply was issued to him:-
2. The entry pay in the revised pay structure in respect of Hd. Constable of Delhi Police, directly appointed on or after 1.1.2006 is 9910/- (Pay Rs.7510/- + Grade Pay Rs..2400) in Pay Band-1.
5. The pay of the Govt. servant who had joined service before 1.1.2006 is required to be fixed by multiplying their existing basic pay on 1.1.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of 10 as per rule 7(1) (A) of the CCS (Revised) Pay Rules, 2008. But the entry pay fixation of the direct recruits appointed on or after 1.1.2006 is governed by the section II of part-1(A) of the First Schedule to CCS (Revised) Pay Rules, 2008. Due to the different provisos of rule, there could be difference of pay in such matter.
6. The applicant has also filed a copy of the letter addressed to the office of the Respondent No.1 by the office of Respondent No.3 on 08.12.2009, which states as follows, and which was provided to him through the covering letter issued by the office of the Respondent No.3 on 17.12.2009, in response to his request dated 21.12.2009:-
Sub:- Anomaly in pay fixation under CCS (Revised Pay) Rules, 2008 in respect of Head Constables who joined before 01-01-2006 and after 01-01-2006.
Sir, I am directed to refer to your letter No.F.No.3/2/2009/HP(1)/Estt./620 dated the 21st May 2009 on the subject noted above and to say that, Ministry of Finance, with whom the matter was taken up have stated that the revised pay structure comprises grade pays and running pay bands and in the case of those Government servants who were already in service before 01-01-2006, Sixth Pay Commission had not prescribed a minimum pay in the running pay band with reference to the minimum, entry level pay prescribed for direct recruits appointed on or after 01-01-2006. Accordingly, as per the provisions of CCS (RP) Rules, 2008, pay of those Government servants who were already in service on 01-01-2006 can not be fixed with reference to the pay of those who joined the Government as direct recruits on or after 01-01-2006. As such, this cannot be construed as an anomaly.
2. You are, therefore, requested to initiate action accordingly.
7. The applicant has, in support of his contentions, submitted that under the CCS (RP) Rules, 2008, itself, it has been clarified, as re-produced in Swamys Compilation regarding stepping up of pay to remove anomalies, as follows:-
1. If the anomaly is due to fixation of pay in the revised scales under sub-rule(1) of Rule 7 of CCS (RP) Rules, 2008, the pay of senior will be stepped up to the same stage in the revised pay band as that of the junior.
8. The applicant had earlier filed an OA No.1150/2010, which had been disposed of on 13.12.2010, with the following directions:-
Learned counsel for the applicant has filed a copy of the order dated 14.09.2010 issued by the Ministry of Home Affairs and states that in terms of this order, he is satisfied that action is being taken for according relief claimed by him. He would, therefore, like to withdraw the OA with liberty, if so advised, to challenge the order passed in consequence of this letter in accordance with law.
2. In view of the above, the OA is closed as withdrawn with liberty as aforesaid. We hope that the final order based on this letter would be passed by the respondents preferably within a period of three months.
9. This, the applicant states, was done on the basis of Annexure A-23, which had stated as follows, and which the applicant had misinterpreted at that time to be favourable to him:-
Sub:-OA No.1150/2010-Anil Kumar Vs. GNCTD & Others.
Sir, The undersigned is directed to invite your kind attention to PHQ letter no.14098/CR-II (PHQ) dated 27.8.2010 and to say that the parawise comments were referred to D/o Expenditure and they have advised to consider stepping up of pay of the applicant with reference to such of their directly recruited junior who are recruited on or after 1.1.2006 and whose basic pay is more than that of the applicant, subject to the following conditions:-
(i) Stepping up the basic pay of seniors can be claimed only in the case of those cadres which have an element of direct recruitment and in cases where a directly recruited junior is actually drawing more basic pay that the seniors. In such cases, the basic pay of the seniors will be stepped up with reference to the basic pay of the directly recruited junior provided, they belong to the same seniority list.
(ii) Further, Government servants cannot claim stepping up of their revised basic pay with reference to entry pay in the revised pay structure for direct recruits appointed on or after 1.1.2006 as laid down in Section II of part of First Schedule to the CCS (RP) Rules, 2008, if their cadre does not have an element of direct recruitment or in cases where no junior is drawing basic pay higher than them.
(iii) Stepping up of pay of the seniors in accordance with the present advice of this Department shall not be applicable in cases where direct recruits have been granted advance increments at the time of recruitment.
2. Parawise comments need to be modified accordingly and may be sent to this office for further vetting from D/o Expenditure and extension of time for filing counter reply may also be obtained from the Honble Tribunal.
10. The applicant has submitted that the respondents have ignored the instructions and misread the contents of the instructions issued to them, since promotions to the post of AWO/Telephone Printer Operator (TPO, in short) in the Communication Cadre of Delhi Police are on the basis of 100% direct recruitment to the Cadre, 60% from the open market, and 40% from among the Constables (Executive). His contention is that the respondents have wrongly taken the plea that his pay as on 01.01.2006 as Head Constable (AWO) 1998 Direct Recruit had been correctly fixed, and that he is not entitled for parity even with certain promoted Head Constables (AWO). On 19.05.2011, the applicant gave a detailed representation submitting that such persons were not promoted to be selected under the Recruitment Rules, and he had also filed a Contempt Petition No.537/11 in his earlier OA No.1150/2010, but then he learnt that the Contempt Petition was not maintainable. He prayed for withdrawal of the Contempt Petition, with liberty to file a fresh OA against the impugned order of his pay fixation, which withdrawal of the Contempt Petition was permitted by this Tribunal.
11. His representation dated 06.05.2011, which was disposed of through the impugned order dated 13.05.2011 which impugned order had earlier formed part of the Contempt Petition, has now been impugned in this OA as the Annexure A-1. The applicant has submitted he has been undergoing financial losses, and has exhausted all the administrative channels, and therefore, he has approached this Tribunal in this regard. For seeking the reliefs as already mentioned above, he has taken the ground that the Delhi Police cannot discriminate between identically situated persons in the matter of parity of pay fixation, thus creating a system of irrational classification, which tentamounts to a deprivation of the applicant of his fundamental right to receive his entitled wages, and the actions of the respondents amount to a violation of his rights under Articles 14, 16, 21 & 23 of the Constitution of India. He has further taken the ground that there has been a total non-application of mind on behalf of Respondent No.3 in applying the multiplication factor of 1.86 to his pay in his erstwhile pay scale of Rs.3200-4900/-, and arriving at the rounded figure of Rs.7060/-, while actually they should have allowed him pay fixation in the upgraded pay scale of Rs.4000-6000, when his salary would have become substantially more, as has been done in the case of other similarly placed officials/Head Constables in Delhi Police. In the result, he had prayed for the OA to be allowed.
12. The respondents filed their reply on 23.01.2012, and submitted that the applicants pay has been fixed correctly, and that the amount of Rs.7510/- per month + Grade Pay of Rs.2400/- has actually been made applicable only for the direct recruit Head Constables appointed on or after 01.01.2006. As a result, the revised pay given to such direct recruit Head Constables, who had joined before 01.01.2006, is actually less than that of those who have been appointed on or after the said date, and because of this only, a clarification dated 27.10.2009 (Annexure R-I) had been sought, and it had been requested that the cases of the 8 persons named in that letter, including the present applicant, be referred to the appropriate authority for consideration. The reply to this was issued by the Respondent No.1 through their letter dated 08.12.2009 (Annexure R-2), which was produced by the applicant also as Annexure A/21, and has been reproduced in Para-5 above.
13. The respondents further pointed out that through Annexure R-3 letter dated 14.09.2010, which was produced by the applicant as Annexure A-23, and has been reproduced in para-8 above, it has been already directed for stepping up of the pay of the applicant with reference to such of his directly recruited juniors, who were recruited on or after 01.01.2006. They submitted that in spite of these instructions and clarifications, the pay of the applicant could not be stepped up, as no junior Head Constable (AWO)-(direct recruit), has been appointed after 1998, against whom the respondents may consider the applicants case for stepping up of his pay. It was further emphasized that there is no direct recruit junior HC(AWO) in his cadre, who is drawing higher basic pay than him, and, therefore, the pay of the applicant had been fixed as per his entitlement, and had been fixed correctly.
14. It was further submitted that the 6th Pay Commission had not prescribed a minimum pay in the running Pay Band for those Government servants who are already in service on 01.01.2006, and that their pay cannot be fixed after stepping up with reference to the pay of those who had joined the Government service as direct recruits on or after 01.01.2006, and that as pointed out in the letter dated 08.12.2009 issued by Respondent No.1, this cannot be construed as an anomaly. It was further submitted that the amendment in the Recruitment Rules 17 B (IV) in respect of Head Constables (AWO/TPO) in 2008 is also not applicable in the case of the petitioner, as no direct recruitment has taken place so far on the basis of these amended Recruitment Rules of 2008, and the amended Recruitment Rules cannot be made applicable to the applicant who is already in service. It was, therefore, submitted that the pay of the petitioner had been fixed correctly and the applicant is not entitled to the relief as prayed for and the OA is liable to be dismissed.
15. The applicant filed a rejoinder on 16.03.2012, more or less reiterating his submissions in the OA, and stating that he has been singled out for a discriminatory treatment in the matter of fixation of his pay and allowances through a fallacious and distorted interpretation of the Rule-7(1) (A) (i) and (ii) of the CCS (RP) Rules, 2008. He had reiterated that the pay scale of Rs.4000-6000 had become operative for all incumbents on the posts of Head Constables in Delhi Police w.e.f. 01.01.2006, and the respondents are trying to mislead this Tribunal by making wrong submissions. He further submitted that the Police Hqrs clarification dated 17.12.2000 cannot be treated as an authority, and that the replies issued to the applicant under RTI, filed as Annexure R-6 and R-7 by the respondents, and as Annexure A-20 by the applicant himself, portions of which have been reproduced in Para-4 above, have no bearing on the case of the applicant. It was further submitted that his prayers are not imaginary, and are fully within the parameters of statutory rules and administrative orders, and, therefore, the reliefs sought for by him in this OA are due to him, and he is fully entitled for the grant of the salary as prayed for, and he had, therefore, again prayed for the reliefs to be granted and the OA to be allowed by this Tribunal. Along with the rejoinder, Annexure J-I had also been filed, being the Explanatory Memorandum to the CCS (RP) Rules, 2008, along with the illustrations enclosed therein regarding fixation of pay under RP Rules.
16. Heard the case in detail. After the case was heard and reserved for orders, the learned counsel for the applicant filed his written submissions on 20.04.2012. With these written submissions, the applicant had reproduced Section-2 of the Revised Pay Structure as notified under the CCS (RP) Rules, 2008, in which, under the Ministry of Home Affairs, Head Constables in Delhi Police, who were earlier in the pay scale of Rs.3200-4900, had been ordered to be placed in the pay scale of Rs.4000-6000, in Pay Band-I with Grade Pay of Rs.2400/- as per recommendation in Para-7.19.50 of the report of the Sixth Central Pay Commission, and the lower pay scale of Rs.3050-4590 stood revised to Rs.3200-4900, in Pay Band-I, with Grade Pay of Rs.2000/-, under the same para, in respect of Constables in Delhi Police. It was, therefore, prayed that the benefit of the higher pay scale as given to all Head Constables in Delhi Police, should be accorded to the applicant also.
17. We have given our anxious consideration to the facts of this case. While it is clear that the Delhi Police Executive side has a separate Cadre, and the Rules applicable to that Delhi Police (Executive side) do not directly apply to the Constables and Head Constables in Delhi Police Cadres of AWO and TPO, as has been submitted by the applicant himself in Paras 4.18, 4.19 and 4.20 of the OA, since there are separate Recruitment Rules, 1980, for the posts of AWO/TPO in the Communications Unit of Delhi Police, with 60% recruitments to the Head Constable level being directly from the open market, and only 40% being from among the Constables from the Executive side of Delhi Police. The applicant has also produced the amendments to the said Recruitment Rules which has been notified in the year 2008 after approval by the Lt. Governor through Annexure A-23/A of his OA. Thus, the applicant belongs to a separate cadre itself, and cannot claim absolute parity with the Head Constables on the Executive side of Delhi Police for all service conditions.
18. However, we find that the 40% of the Head Constable posts in the Communications Unit, which are filled from among the Constables (Executive) of Delhi Police, by giving them age relaxation, also enjoy the advantage of their service in the Communication Cadre being treated to be in continuation of their earlier service in the Executive cadre, and on the basis of this they are entitled to the benefit of ACP/MACP Schemes when they join the Communications Unit on absorption basis from the post of Constables (Executive). The Notification dated 24.08.2008 reads as under:-
2. The Honble Lt. Governor, Delhi has also accorded his approval for grant of benefit of first up-gradation under the ACP Scheme to the AWO/TPO (HCs) who are in service as on date and who have joined the absorption from the post of Constables, as and when they complete 12 years of service as AWO/TPO (HCs).
19. Thus, in the Communications Cadre of Delhi Police itself, there are already two categories of Head Constables co-existing, the 60% direct recruits from the open market, and 40% promotees from among Constables on the Executive side, and a third category of such Head Constables would be added once any such direct recruit Head Constables are directly recruited after 01.01.2006, in whose cases, as it appears from the reply of the Respondents, the revised Head Constables pay scale of starting point at Rs.7510/- would have to be made applicable by them as there are no intelligible differentia to make a distinction between the starting salary of Head Constables at Rs.7510/- on the Executive side, from the starting salary of Head Constables in the Communications Unit, on either the direct recruited side, or the promoted side.
20. The only contention of the applicant which has never been met or answered by the respondents fully is that even prior to the acceptance of the 6th Pay Commission Report having been notified, the placement of Head Constables in Delhi Police into the erstwhile S-7 pay scale of Rs.4000-6000/- had been notified and made applicable. Nowhere in the Para-7.19.50 of the recommendations of the 6th Pay Commission, and in the corresponding Notification issued by the respondents through Ministry of Finance Notification dated 29.08.2009, circulated and adopted by the Delhi Police on 02.09.2008 of 01.01.2006 through Annexure A-3, has it been indicated that the employees of the Communications Unit of Delhi Police would be excluded from the stipulations made applicable to the Head Constables of Delhi Police, by accepting the recommendations of the 6th Pay Commission in this regard. Therefore, the Respondents have erred while issuing the impugned order dated 12.11.2009 (Annexure A-2), inasmuch as they have fixed his pay w.e.f. 01.01.2006 in PB-I at Rs.7060 with reference to the stage of his pay at Rs.3,795/-, in the pre-revised S-6 pay-scale of Rs.3200-85-4900, which pay scale is only applicable to the Constables of Delhi Police w.e.f. 01.01.2006, and all the Head Constables of Delhi Police already stood upgraded to the S-7 pay scale of Rs.4000-6000, which benefit cannot be denied to the applicant.
21. The respondents have only pointed out that in his own cadre of Head Constables in Communications Unit, no junior of the applicant has been appointed, and have treated his case only with reference to the point of view of stepping up of his pay with respect to his juniors, and not as a case of the fixation of his pay on the initial date of 01.01.2006 itself. At the same time, it is seen that the Head Constables in the Security Wing have already been equated with the Head Constables on the Executive side. Therefore, the Respondents not having maintained a clear cut distinction between the cadre of Head Constables in Communications Unit or Security Unit from the cadre of Head Constables Executive side till the 4th and 5th Pay Commission, the respondent authorities cannot now be allowed to introduce such a disparity and distinction between the Head Constables in the Communications Unit cadre, and the Head Constables in the Executive side cadre, or the Security Wing Cadre, even though the Recruitment Rules for them may be different. To that extent, the source order, the impugned Annexure A-1 is also defective, inasmuch as it should have added by way of clarification that when (and where) the pay scale itself has been upgraded for Head Constables of Delhi Police from S-6 to S-7 pay scales, at least the benefit of that upgradation has to be provided to all the Head Constables w.e.f. 01.01.2006.
22. In the result, the OA is allowed, with directions to the respondents to consider the case of the applicant for allowing him pay fixation in S-7 pay scale of Rs.4,000-6,000/-, as made applicable to all the Head Constables of Delhi Police w.e.f. 01.01.2006 and that they cannot be allowed to make a distinction, and state that pay fixation in S-7 pay scale as on 01.01.2006 cannot be granted to him merely because in his own cadre of Head Constables in Communications Unit, no recruitment of Head Constables AWO/TPO has been made so far, and, therefore, the rule regarding stepping up of his pay with respect to his juniors cannot be applied, since Delhi Police has not maintained any distinction in between any of its cadres, and no distinction of pay among various cadres appears to have been maintained in the implementation of the earlier Pay Commissions reports also.
23. With the above directions, and to the above extent, the OA is allowed, but there shall be no order as to costs.
(Sudhir Kumar) (Dr. Dharam Paul Sharma) Member (A) Member (J) cc.